Should Hard-line Prosecutors Be Nervous?

After voters oust two prosecutors for failing to hold police accountable, maybe.

Voters delivered two big upsets in local Democratic primaries Tuesday night: in Cook County, Ill. they ousted state’s attorney Anita Alvarez. And in Cuyahoga County, Ohio, incumbent county prosecutor Timothy McGinty lost his re-election bid. Both prosecutors lost in part due to criticism that they failed to hold police accountable for high-profile shootings of young blacks.

The results were especially surprising given that incumbent prosecutors are often a shoo-in in such low-turnout, low-information races. According to a 2009 study of prosecutorial elections in 10 states from 1996 to 2006, prosecutors won re-election 95 percent of the time. In 85 percent of races, they ran unopposed.

The national debate on police accountability and criminal justice reform seems to have turned these once-quiet elections into a new battleground. Even big money liberal donors like George Soros have been throwing cash into local prosecutor races. As activists celebrate victories in Chicago and Cleveland, the question now is: will it continue, and where?

“Those [elections in Chicago and Cleveland] are two anecdotes, not data. But they might be signaling the start of a new era of prosecutor elections,” says Ronald Wright, a criminal law professor at Wake Forest University and the author of the 2009 study. “When two very high-visibility prosecutors are rejected by the voters, then that makes me wonder, is the story changing?”

It’s not just that these state’s attorneys lost their seat, but how, that is significant. Prosecutorial elections, like those for judges, have traditionally been fought over promises to be tougher on crime and, in many districts, to hand down harsher sentences. Candidates often trumpet endorsements by police. Wright’s survey found that prosecutors discuss their “relationship with law enforcement” and a promise of “more violent crime enforcement” far more often than they speak of fairness or equity.

In contrast, last night’s winners campaigned on changing the system and not letting officers off the hook. Kim Foxx, a veteran prosecutor who won in Cook County, faulted Alvarez for taking more than a year to bring charges against the officer who fired 16 shots at 17-year-old Laquan McDonald, and nearly two years to indict the off-duty cop who shot and killed Rekia Boyd. She touted her role in policy changes that sent fewer people to jail. The victor in Cuyahoga County, Michael O’Malley, ran on a more traditional platform, but still criticized McGinty’s handling of the shooting of 12-year-old Tamir Rice, and pledged to restore trust between his office and black communities.

It often takes a scandal to actually oust a sitting prosecutor. But, Wright notes, “normally it’s a murder prosecution where there was an acquittal, or a public corruption case where they decided not to charge...It’s normally not police shooting cases.”

In the era of Black Lives Matter, high-profile police shootings have not always had an impact on Election Day. St. Louis County prosecutor Robert McCulloch won his primary election days before the police shooting of Michael Brown stirred angry protests, then ran unopposed in the November election. The Staten Island prosecutor who failed to indict the officer who choked Eric Garner was elected to Congress not long after the controversial case. The heated race to replace him, in a conservative district, included little mention of Garner or police misconduct.

Even when a prosecutor stirs controversy, it is often hard to get voters to pay attention. In Cuyahoga County, roughly 20 percent of those who turned out for the primary election did not cast votes in the district attorney’s race. “These local down-ticket races can be very important, but they often don’t get the attention they need,” said professor John Pfaff of Fordham Law School, who studies prosecutors and sentencing.

Meanwhile, L.A. County District Attorney Jackie Lacey is facing pressure to prosecute police as she nears her re-election vote this June. Some local activists have called for her to step down already for not indicting a highway patrol officer videotaped beating up a mentally ill black woman. Others have clamored for her to charge officers in two different high-profile shootings.